Can a part-time public defender and his assistant represent co-defendants whose interests conflict if they keep separate offices?

Plain-English summary

The committee was asked whether a public defender and an assistant public defender, both employed part-time but maintaining separate offices in different villages of the same county, could represent co-defendants with conflicting interests. It answered the question in the negative.

The committee relied on N.Y. State 173 (1970), which held that co-defendants with conflicting interests cannot both be represented by the public defender's office or members of its staff in either their private or public capacities, and which required that wholly independent special counsel be retained for the conflicting co-defendant. The rule rests on the principle of EC 5-15 that lawyers should not undertake to represent clients with conflicting interests in litigation. In this setting, the public defender and all subordinate personnel regularly employed by the office are treated as one.

The committee tied the imputation to DR 5-105(D), citing N.Y. State 313 (1973), which compared the public defender's staff to a district attorney's staff and to lawyers in private practice and applied the partnership rule: if it is improper for one member of a firm to represent a client in a matter, all members and associates are subject to the same prohibition. The committee distinguished N.Y. State 33 (1966), which had permitted an "Assistant Public Defender" to represent conflicting co-defendants, explaining that despite the title the lawyer there was in fact independent special counsel appointed only where a conflict barred the public defender.

The committee held that the location of the assistant's office was irrelevant. Whether or not he was physically present at the public defender's office, he remained part of the staff and was regularly employed in that capacity, so the conflict was imputed to him.

Currency note

This opinion was issued in 1977, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (concurrent conflicts are now governed by Rule 1.7 and imputation within a firm by Rule 1.10). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can two lawyers in the same public defender's office represent co-defendants with conflicting interests?

A: Under this opinion, no. The committee treated the public defender and all regularly employed staff as one firm, so the conflict is imputed across the office under DR 5-105(D).

Q: Does keeping separate offices in different villages avoid the conflict?

A: No. The committee held the assistant's office location is irrelevant; he remains part of the staff regardless of where he sits.

Q: How is the conflict handled?

A: The committee, following N.Y. State 173, required that wholly independent special counsel, unrelated to the public defender, be retained to represent the conflicting co-defendant.

Background and rules framework

The opinion applies EC 5-15 (declining representation of conflicting interests in litigation) and DR 5-105(D) (imputed disqualification across a firm or its functional equivalent). The committee treats a public defender's office like a law firm and like a district attorney's staff for imputation purposes. The current Model Rule analogues are Rule 1.7 (concurrent conflicts) and Rule 1.10 (imputation of conflicts within a firm).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest: current clients)
• MR 1.10 (imputation of conflicts of interest)
• NY EC 5-15; DR 5-105(D)

Other opinions cited:

• N.Y. State 173 (1970): independent special counsel required for conflicting co-defendants
• N.Y. State 313 (1973): public defender and DA staff treated as a firm under the partnership rule
• N.Y. State 33 (1966): distinguished; the "assistant" there was in fact independent special counsel
• N.Y. State 260 (1972); 254 (1972); 227 (1972); 102 (1969)

See also

• NY State Bar Op. 497: Assistant public defender sharing an office with a justice
• NY State Bar Op. 1105: Imputed conflict from a part-time public defender
• NY State Bar Op. 1115: Public defender appearing before a colleague judge

Source

• Landing page: https://nysba.org/opinion-462/